Back to the Future? Where Next for Probation.

What to make of today’s announcement about the future shape of probation services? Is it as Russell Webster pronounced the end of Transforming Rehabilitation? Or is the foreshortening of existing private probation contracts merely a case of reculer pour mieux sauter ? All bets are off of course if Labour come to power. They have pledged a unified public-sector service with Lord Ramsbotham currently mulling the best way to organise it. But today, the Government offers the opportunity for anyone to pitch in ideas for the best way forward if they stay at the helm. Although the Consultation invites views on 17 specific questions, it will not require too much creativity for answers to propose more macro level suggestions about how to rescue probation from the mire.    

Despite many calls for the public National Probation service to be reunited with the Community Rehabilitation Companies, this seems to be happening only in Wales. In England, 10 new CRC’s will be contracted to replace the current 20. The MoJ say they’ll explore with the market how to establish a more effective commercial framework which better takes account of changes in demand for probation and ensures providers are adequately paid to deliver core services. It’s possible that such exploration will find no workable framework other than reunification. But I doubt it.

For one thing, big beasts G4S and SERCO may be allowed back on the scene. Although still under investigation by the Serious Fraud Office for overcharging on tagging contracts, both companies seem to be back in the contracting fold, relieved perhaps to have missed out on the embarrassment of TR1 and eager to show how they can learn from its mistakes.

More significantly, privatisation is now hardwired into conservative thinking. The party’s new vice chairman for policy, Chris Skidmore, was among those who has in the past argued that all prisons should be contracted out on a payment by results (PBR) basis. So too was Chief Secretary to the Treasury, Liz Truss, who’ll have to sign the new probation arrangements off. Before doing so, she will surely want to reflect not only on private sector underperformance but on how little risk the businesses have taken on.  We are told today that long-term trends in re-offending are substantially affecting providers’ payment-by results income, threatening to undermine the delivery of core services.  Setting aside the fact that declining clear up rates should make it easier to reduce recorded reoffending, the limited impact on persistent and prolific offenders is one of the many disappointments of the TR scheme. If today may not mark the end of TR, it may be the demise of PBR, in this field at least.

What comes next? The Howard League are pushing a Scottish type arrangement which has a lot going for it- although they’ll need to re think their proposed 21 service delivery areas. Maybe because I used to be on the Youth Justice Board, I’ve always favoured an Adult Offending Team model  along the lines of Youth Offending Teams (YOT’s).   These local authority based multi-agency teams, developed in Tony Blair’s first term, partly in response to a damning critique from the Audit Commission, have by and large proved an effective model for diverting young people from crime, from prosecution and from custody.

This is surely the sort of approach we now need for adults. There’s scope for discussion about the role Police and Crime Commissioners might play in any new system and whether Adult Offending Teams should form part of a broader devolution of justice responsibilities and budgets to a more local, and locally accountable, level. This is just the kind of discussion we need to have now. 

A Fresh Crackdown on Crime in Prison- if Only

Many of the great and the good of the prison reform world gathered yesterday morning at Church House to hear Justice Secretary David Gauke ’s second major speech on prison reform in six months.  His words were well enough received by an audience mostly relieved that he hadn’t been shifted to another post.  

Good that he’s found £30 million to repair prisons and equip more cells with phones. But its relatively small beer and maybe not new money. Of the array of initiatives he announced, quite what “digital categorisation” and “drug diagnostics” will deliver remains to be seen. And as for “Lifetime Offender Management”- well it doesn’t exactly sound like a ringing endorsement of the rehabilitative ideal.  Increasing release on temporary licence, improving incentives and creating more in the way of enhanced living conditions for prisoners who engage in rehabilitation sound promising if not entirely new. Forgive the scepticism, but as with Reform and Resettlement Prisons before them, there’s always the worry that these will be the stuff of speeches and press releases rather than sustainable real-world practice.

In- Cell telephones apart- the more progressive the policy ideas, the more aspirational and less concrete they become. Gauke, for example thinks too many people go to prison for prolific petty crime and short custodial sentences should only be used where absolutely appropriate. So what will he do? Introduce legislation restricting their imposition? Instruct the Sentencing Council to revise their guidelines? So far neither has been mentioned. It won’t happen of its own accord, particularly with probation in such a state.

The reason for the timing of Gauke’s speech became clear today, with the Chief Inspector’s  excoriating annual report on prisons.  Peter Clarke has seen conditions which he says have no place in an advanced nation in the 21st century. And prisons are still becoming less safe not more.  For Clarke, “improvement has yet to materialise”. Both staff and prisoners alike seem to have become inured to conditions that should not be accepted.

Cleverly getting his retaliation in first, Gauke was trying to give a rather more positive impression of the Government's management of penal affairs- as well as blunting the impact of Clarke's report .  

Just in case he looked too liberal, Gauke's  Church House policies were framed as “a fresh crackdown on crime in prison”. If only. The real crime in prison of course is that they have been allowed to deteriorate so far.  

Questions of Sentencing

An appearance this week in Parliament for the Chair of the Sentencing Council, who’s up before the Justice Committee as part of its inquiry into the prison population.  The Committee is always consulted about draft sentencing guidelines and has often been concerned about their potential to inflate the length of prison sentences. The Committee is right to be vigilant as a recent independent review of the Council’s work by Sir Anthony Bottoms found two of its major guidelines – on assaults and burglary - have led to unexpected increases in the severity of sentencing.  So what should MP’s ask Lord Justice Treacy on Wednesday? Here are four suggestions.
 

First, the Committee should ask why the Council rejected two of its proposals about the new breach guideline. The law requires courts to activate a suspended prison sentence in the event of a further conviction or failure to comply with a supervision requirement “unless it would be unjust in all the circumstances.” MP’s wanted courts, when forming a view on whether to activate, to be able to look afresh at whether the original offence had reached the custody threshold; and whether any shortfall in the quality of supervision by probation services may have contributed to the non-compliance or further offending.  The Council disagreed on both counts. Treacy should be asked to explain why “all the circumstances” excludes these two.

Second, as I did in my 2016 Transform Justice report , Tony Bottoms’ review criticised the Council for giving little emphasis to its duty, when drafting guidelines, to consider the cost and effectiveness of sentences. MP’s will want to know what steps the Council is taking to remedy this. Do they see any merit for example in explicitly permitting, or even encouraging courts to sentence below the usual range if it is in the interests of problem solving or rehabilitation in a case?  And how does the Council plan to reflect recent evidence that community-based supervision is more effective than a short spell in jail.

Third, MP’s might wonder what if any role the Council has to play in the implementation of the Female Offender Strategy published last month.  The strategy aims to “support a greater proportion of women to serve their sentence in the community successfully and reduce the numbers serving short custodial sentences”. But there is no mention of any new guideline or change in the law to make that happen. There is a case for guidelines on a distinctive approach to a variety of people with special needs.  But for women, it is surely long overdue.

Finally, the Committee should want to know if the Council has the resources to do its job properly. Treacy told the Committee in May that it couldn’t afford to research whether and how courts take the maturity of offenders in to account when sentencing- a topic of concern to the Justice Committee given their recent  inquiries into young adult offenders. Treacy's letter to them talked of an additional cut of 6% on top of 5% “which If implemented … would cut our available resources (after fixed costs and prior commitments) by 56 per cent”. Although the timescale’s not clear, it must be a false economy for the MoJ to grab a few thousand savings on research and analysis from a body whose decisions determine the spending of so many millions in prison costs.    

Population Explosion?

England and Wales has the highest rate of imprisonment in Western Europe.  Its 83,000 prisoners represent 141 per 100,000 of the general population. By comparison, the rate in France is 102, Germany 78, and the Netherlands 59. Last week the Minister responsible for prisons and sentencing told a parliamentary committee “the likelihood at the moment, unless something astonishing changes, is that our prison population will go up beyond 92,000 or 93,000”.

Although giving evidence to an inquiry on the prison population in 2022, Rory Stewart was presumably looking further into the future than that. His department’s statisticians put the chances of reaching or exceeding a 92,800 population in 2022 at just 5%. And since that estimate was made there has been a large and unexpected fall in prison numbers- there were 3,500 fewer prisoners than anticipated at the end of last week. So things would have to go catastrophically awry if the MoJ’s central projection for 2022- 88,000 prisoners – were to be exceeded by then, let alone Mr Stewart’s apocalyptic figure reached.

But what about the longer term?  Mr Stewart believes that “as we give more voice to citizens and to victims, almost inevitably we are going to face pressure between now and 2030 for longer and more brutal sentences”. He rightly pointed to punitive public attitudes to sex offenders who represent a growing proportion of prisoners. There’s less evidence for his assertion that “there will be a groundswell, probably between now and 2030, of people saying that domestic burglary is an absolute taboo.”

Committee Chair Bob Neill challenged Mr Stewart that the job of any responsible Government is  to lead and shape the conversation, to try to make sure that we have a more informed debate about how to deal with this. While the minister agreed, he added the proviso that “we understand the sea in which we are swimming”.  There's a good deal of research that suggest it may not be as shark infested as Mr Stewart believes.  

What’s crucial is how future governments choose to navigate that sea. Mr Stewart thinks  “an ever-growing prison population is not in the interests of the public” and that “the  victim will be better off, the offender will be better off and society will be better off if we ultimately have fewer people in prison.”

As in so many matters, this reasonable view is not wholly shared in his party.  The new Conservative Party Policy  Commission is chaired by Chris Skidmore MP- one of the co- authors of a book which made the case for restoring public confidence “by seeking longer tougher prison sentences”.  Maybe Mr Stewart’s seemingly defeatist approach to future penal policy betrays a belief that those who wish to “reverse the tide of soft justice “ will prevail within his party at least.

Lets hope not . Fellow Conservative  Bob Neill told Parliament yesterday that we could  “as a society and as a Parliament—seize the bull by the horns and make a determined resolve to reduce the prison population”. “That can be done”, he added  “by releasing prisoners who are not a threat to society in a physical or serious financial sense and by finding robust and credible alternatives to custody that enable sentencers to deal with many more offenders in the community without the need for the extreme cost of imprisonment.” That surely is the way forward.